Contents: 1. Introduction – 2. the 1993’s Constitution: Law, Public Administration and civil servants’ education system – 3. Russian Public Administration perimeter within the 21st century administrative reforms.
1. Introduction
The Russian Federal system represents an interesting starting point of investigation concerning the analysis of Public Administration: its main feature is the long autocratic tradition, ranging from the Tsarist period to the Soviet socialist system and resulting in a hypertrophic development of the administrative apparatus and the consequent fragmentation of the administrative body.
Lack of an organically structured legal science, the abandonment of economic socialism, the opening to the markets and the subsequent reorganization of the administrative apparatus by virtue of privatization processes in the early nineties of the last century[1], as well as the introduction of the New Public Management theories, are emblematic steps in the Russian public sector change processes.
The first stage of the shifting process in the Russian Public Administration dates back to the early nineteenth century, when Tsar Peter the Great introduced critical institutional changes such as the foundation of a regular army and the establishment of a permanent council of ministers. He also divided Russia into eight regional units, each one headed by a governor and a military officer.
In the field of administrative law, the cornerstone of change was the gigantic Svod Zakanov, an impressive and huge collection of practices, customs, proprietary and agrarian laws, drafted in 1832, according to the directions of Tsar Nicholas I of Russia, and divided in 15 volumes, in turn divided into eight sections containing 100,000 articles of law, two thirds of them belonging to public law and administrative law, making Russian law a complex of administrative norms[2].
A mix of statutory and administrative models occurs, observable in the discipline of contracts, in which the Public Administration was a necessary part; the purpose of the Svod Zakanov, with a clear French inspiration, was an attempt to a real codification of the body of administrative rules; study commissions were set up to create cultural exchange networks with France, strengthened at a time when the Napoleonic Army was invading Russia.
In Soviet Russia, law became a tool to reach the final overcoming of social classes; during this period, the concepts of private property, legality and economy changed because of the new socialist vision of social reality. Legislation is based on a clear vertical subordination, giving national level bodies a strong role and the production of goods, provision of services, agriculture foresaw the massive presence of political and administrative bodies (factory soviet, presidium); then, civil and criminal law are encoded, including the rites of both materials.
The institution of the so-called Interpello survived the tsarist period: administrative law still had found no encryption (but only consolidation) and in the absence of a real hierarchy of sources (speaking only of legal forms), the public official was in a position to appeal to the only higher-ranking administrative authorities, in order to have the authentic interpretation of the rule application.
Communist bureaucracy (nomenklatura) became the new administrative elite, ruling Public Administration under the principle of “democratic centralism”[3]; this meant that any decision taken at the local level could be revoked by a superior authority and that the minority had to follow the will of the majority.
Evaluation meant assessing whether the subordinate had achieved the objectives set by the superior; the orders issued were related to the execution of the plans and the responsibility to do so, which fell under control of the Communist Party. Evaluation of implementation plans steered administration to serve the state interests; the concept was that there would be an inherent connection between the country’s supreme leadership, local initiative and the responsibility of each State authority to fulfill its duties.
Protocols and explanatory circulars began to spread in the public sector system, differing from region to region and from city to city; the indistinctness between an administrative act and a contract was still great[4], as there was no distinction between judges/lawyers and public officials (such as police officers, with whom there was frequent interchanging of roles).
2. The 1993’s Constitution: Public Administration and civil servants education system
The attention to the need to encode the administrative law was not a priority even during the legislature of the early nineties of the last century. In 1993, the first democratic Constitution of post-Soviet Russia was drafted, including many sensitive rules regarding the return of transparency, respect for human dignity and fundamental freedoms; in the same period, rules for the political organization of the federal State and its various levels of government were written and the judicial system restructured.
The codification route included the complete review of the labor law, family law, civil and criminal law, but administrative law was ruled out: however, an administrative code was present, containing sanctions related to administrative offenses, considered less serious than criminal offenses (for example: financial penalties relating to violations of the law on trademarks and patents)[5].
In 1990s a rudimentary anti-trust institution was established, replaced by a far more structured and functional Authority, the FAS (Federal Antimonopoly Service of the Russian Federation, established in the early years of this decade; there is also a Ministry for anti-trust policies). Before the Authority’s settlement, Russia’s national economy had long been dominated by industrial state-run organizations. Hopes of the institutional authorities resided in the forecasts that state-owned enterprises would gradually switch from a state-planning system to a free market behavior, while small enterprises would increase the provision of consumer goods and services and help to stimulate the formation of a market infrastructure[6].
The 1994 Civil Code provided for free movement of goods and services and defined restriction of competition and abuse of a dominant position as abuses of civil law rights. Priority was to focus on measures to ensure the application of federal laws, to erase local and regional legislation and regulations in conflict with superior legal rules and to provide for the preservation of the economic space guaranteed by the 1993 Constitution[7].
The Constitution reflected the qualitative changes in the social policy of the State: its the State’s duty to recognize, determinate and protect the rights and freedoms of all human beings and citizens (Article 2). Class attitude to different population groups was removed and rights and freedoms for human beings and citizens were recognized not only according to the Constitution, but according to the shared principles and norms of international law.
From a careful examination of its structure and content, the Russian Constitutional Chart is closer to traditional western Constitutions, most of which reflect the willingness to satisfactorily achieve the coordination of activity in all branches of the State, while at the same time setting real priorities for every branch, considering the specificities of the political traditions built in the described historical stage.
The emanation of the Russian Constitution took into account that the Russian Federation is made up of 89 regional bodies, including 21 republics, 49 provinces (oblast), 2 metropolises (Moscow and St. Petersburg), 6 territories (kraj), 10 autonomous areas (okrug) and the Jewish Autonomous Region.
The principle of the division of powers into legislative, executive and judiciary was one of the cardinal principles on which the Russian Constitution is based.
The state power at the federal level is managed by the President of Russian Federation, the Federation Council, the State Duma, the Government and the Constitutional Court, Supreme Court and Supreme Court Arbitration.
The President of the Federation is the Head of State, as well as guarantor of the Constitution, the rights and freedom of human beings and citizens. He coordinates the exercise of the powers of various organs, encourage their effectiveness and exercises its powers without replacing any state body and without violating their autonomy in compliance with the dictates of the Constitution, as well as exercising the application of the conciliation procedure in the event that conflicts arise between the organs of the state.
The Government, which acts independently, represents the executive power; the Prime Minister, Chairman of the Government, is appointed by the President and confirmed by the Duma.
It exercises the main functions, being responsible for drawing up and submitting to the Houses the federal budget and the report on its implementation, creating a unified policy in the field of economy, culture, health, environment, federal wealth management as well as in the field of foreign policy and the Federal State security.
The Federal Assembly is a bicameral legislative body consisting of the State Duma and the Federation Council; the population elects the deputies of the State Duma, the lower chamber, while the components of the Federation Council, the higher chamber, are the heads of the executive and legislative power of the Federation.
The President of the Russian Federation delivers an annual report to the Federal Assembly, concerning the situation of the country and the new developments undertaken in domestic and foreign policy: by express constitutional provision, the Duma may dismiss the President from office, but, as a counterweight, the President may dissolve the Duma.
The judiciary power enjoys the same autonomy as enjoyed by the other powers; the highest level belongs to the Constitutional Court of the Russian Federation, which guarantees the protection of individual and collective rights of citizens, especially against the acts of the executive power.
The Constitutional Court is the only body with the power to interpret the Constitution and to declare the invalidity of acts of the federal bodies that are contrary to the Constitution[8].
The Presidential administrative body of the Russian Federation is the most important organ of the entire administrative system, and is subject only to the President: it oversees the cooperation in military-technical field and regulates the foreign trade laws.
In order to ensure national security, the Presidency has the option of imposing economic sanctions to the states of the Federation in accordance with international law and, where appropriate, may use a conciliation procedure to resolve any disputes relating to foreign trade between organs of the Russian Federation and organs of the federation states. Additionally, the administration of the President manages the Russian property abroad[9].
After the breakup of the Soviet Union, various attempts were made to implement reform proposals within the Russian Public Administration. The training of civil servants was a crucial first step.
A Presidential Decree of 1991 established the Directorate General for the training of administrative staff; then, under the supervision of the state and the Russian Academy of Municipal Administration, specialized training institutes for bureaucrats and public managers were created.
In 1992, a first project to develop the legal basis for the civil service was promoted since the drafting of the Constitution of the Russian Federation. In 1995, a federal law “On the basic principles of the Civil Service in the Russian Federation” became effective, throwing a solid basis towards the creation of a merit-based system in the Russian civil service.
It is possible to underline three different historical phases of evolution in the higher education of civil servants: 1) the institutional development between 1991 and 1995; 2) the development of governmental educational standards since 1995 to 2010; 3) the currently diversification of standards and educational programs[10].
By the 2000’s, there was a particular link between initiatives relating to both the New Public Management[11] and the rational Weberian bureaucracy behind the reform of public management and civil service’s education in Russia. On one hand there was a clear need to limit the administrative discretion of the executive bodies and individual public officials with very detailed rules. The elaboration of different documents that contain rules concerning administrative regulations and job descriptions attracted great attention.
On the other hand, several New Public Management measures have been proposed to make government agencies more customer oriented and easy to access and to introduce incentives for public officials such as, for example, public services standards or performance related pay.
Through the federal program known as “Development and Reform of the Civil Service in the Russian Federation (2009–2013)”, a system for the elaboration and implementation of administrative best practices has been experimented through the involvement of government agencies, overcoming the previously existing and costly recruitment system of external experts to develop reform proposals.
This mechanism was definitively adopted in Russian Presidential Decree n. 601 of 7 May 2012, which establishes requirements for government agencies to ensure achievement of several key performance indicators by the government agencies and to develop and implement new staff practices such as competitive selection mechanisms, lists of qualification requirements, remuneration based on assessment of professional performance.
This caused the transition to a stage of gradual accumulation and utilisation of various staff management practices, appearing at both federal level and the other level of constituent entities of the Russian Federation (even regional and local level) and registered by the Russian Ministry of Labour and Social Development through two crucial systemss: best annual practices competitions and recommended practices of improvement of different aspects of public service management, published on the website of the Russian Ministry of Labour.
Regional governance agencies meetings are held with the participation of experts, during which such practices are actively discussed.
In recent years, new procedures to interpret and elaburate the results of monitoring the effectiveness of civil service came into use. This was a crucial step to optimize the size of regional and municipal state authorities staff: with this procedures the amount of time spent on operations, the staff size optimisation calculators and the scopes of administrative functions are implemented and optimized[12].
3. Russian Public Administration perimeter within the 21st century administrative reforms
One of the helpful indicators to identify more precisely the perimeter of Russian public administration consists of the laws relating to the civil service, in particular the Federal Law 30 December 2001, 197 (as amended) concerning “the Labour Code in the Russian Federation”, the Federal Law May 27, 2003, n. 58, on “public law employment in the Russian Federation” and the Federal Law of July 27, 2004, n. 79 “on civil public use in the Russian Federation”, containing its organic rules[13].
In 2003, the Presidential Decree “On measures to implement the administrative reform in 2003-2004” promoted the Public Administration’s reform and, in the same year, the Government Commission on administrative reform was born.
On March 2004 the Presidential Decree “On the System and Structure of Federal Executive Authorities” was issued and the number of government bodies reduced from 6 to 3: a) Ministries, headed by ministers of the Russian Federation (federal ministers) comprised in the Government of the Russian Federation amd responsible for exercising the functions related to the elaboration of the state policy and legal regulation; b) Services, managed by heads (directors) of Federal services and responsible for exercising the functions related to control and supervision within the established terms of reference, as well as special functions related to national defense, national security, guarding and protection of the state border of the Russian Federation, crime control, and public security; c) Agencies, managed by heads (directors) of Federal agencies and responsible for exercising the functions related to the provision of public services, the management of state property, keeping records, registers and cadasters as well as enforcement functions, except for the control and supervisory functions[14].
According to the legislation dedicated to civil servants, the perimeter of public administration embraces the employees of the Federation and the individual Federal states[15]. The only two articles of the Constitution relating to the civil service are Article 32, paragraph 4, which mainly stipulates the equal freedom of access to public service and Article 97; the Constitution, indirectly, takes into account the administrative activities in matters of personal freedom issues, dignity, state organization, judicial organization,.
Public employees in Russia are very low in number (a little over one million, with an employee number to inhabitants of 2.8 per 1000 inhabitants); this is the result of massive privatization maneuvers made between the late eighties and nineties, with the divestment and market opening of huge public enterprises and delivery of vouchers to citizens[16].
The distinction between public employees is between civil and military roles and the role of the police; civilian employees are divided according to their working position within the Federal administration or in a single federated State’s administration.
Civil servants are subject to assessment in accordance with Article 48 of the Federal Law (in order to assess the adequacy of their action to the position held), as well as they are liable to disciplinary measures (provided by art. 57 of the Federal Law. There are five degrees of sanctions: from the slight reprimand to dismissal; the sentence imposed may be appealed through the courts) and, of course, the rewards and incentives (for some authorities, such as police or customs agents the procedure is regulated by internal circulars).
Employees working for less than a year, people more than 60 years old, pregnant women or on maternity leave, are not subject to evaluation.
Noting the severe accident corruption among public officials (according to statistics drawn up over the course of the nineties, 70% of public officials would be inclined to receive gifts or gifts of nature corrupting influence in exchange for office performance[17].
According to the report of the Russian Ministry of the Interior in 1996, for every corrupt official found and brought to trial, there would have been another 99 remained unharmed in the shadows[18]) was enacted a strict Code of conduct, approved by Decree of the President of the Federation Russia August 12, 2002 n. 885, on “General principles of conduct of civil servants”.
In July 2008, the “National Anti-Corruption Plan” was officially published, followed by Federal Law n. 273 “On Corruption Counteraction”. Then the government set a more ambitious path to corruption, promulgating the Federal Law of 4 May 2011 “On Amendments to the Criminal Code and the Code of Administrative Offences of the Russian Federation to Improve State Anti-Corruption Management”, subsequently approving the 2012-2013 “National Anti-Corruption Action Plan”[19].
The actions of regulators are constantly under control, in hopes to prevent corruption crimes, guaranteeing observance of prohibitions and restrictions, fighting public officials bribing, maintaining records of income, expenses, assets and liabilities of civil servants as well as their family members (more transparency through the use of automated computer systems and special softwares), performing horizontal rotation of civil servants who hold positions especially those more subjected to corruption practices[20].
There has been a growing interest for administrative science and bureaucratic procedures, but there is still a lack of codification of administrative law, which permeates almost all other materials and must be identified from time to time. For example, think about the discipline of public service and supply contracts: it is a derogation from the delegated model of private autonomy and is to be found in the Code of Commercial Law body.
In contemporary Russia, emerging from the mass privatizations of the 1990s and marked by a more or less hidden return from the nationalization of production assets, there is the existence of a dual regime linked, on one hand, to the order constitutionally regulated and, secondly, to an administrative power devoid of regulatory attention and based on chaotic relationships, still governed by the Interpello[21].
Similar examples of codification of specific matters related to administrative law, such as state property, do not appear to have improved the situation; typical example is the Water Code, approved in 2006, whose laconic brevity and especially the continued reference to “local administrative practices” make it an empty adjustment tool code[22].
In Russia, there is no general law on administrative procedure; indeed, Article 118 of the Constitution of the Federation, in paragraph 2, expressly states that the judicial power is exercised through constitutional, civil, administrative and criminal proceedings.
The project for the institution of administrative courts has long been announced and wished for, but there seems to have been a certain change of course; that is why, until now, the “administrative justice” is governed by the ordinary courts, which cannot be defined as specialized sections[23].
________________________________________
[1] In 1993 came into force the present Constitution contemporaneously with the development of a broad path of legal codification, in particular administrative codification, started in 1832 with the Tsarist regime and never really accomplished.
[2] N.D. Renaud, “The Legal Force of the 1832 Svod Zakanov”, Sudebnik II, 1997.
[3] T. Aarrevaara, “Restructuring Civil Service in Russian Public Administration”, Ministry of Finance, Public Management Department, Finland, Research Report, 1999
[4] R. David, C.J. Spinosi, 2I grandi sistemi giuridici contemporanei”, Cedam, 2004.
[5] The Code of Administrative Procedure has been approved in November 2015, and pertains to matters closer to Western standards of administrative law (such as electoral disputes).
[6] The extent of state-owned enterprises (SOE), nowadays, is still estimated at around 50%. SOE’s corporate governance is therefore the key economic driver of growth and development.
[7] In recent years has been placed a great emphasis on regulatory contribution: as Basilica F. and F. Berazzoni recall in “Administrative law and simplification policies“, Maggioli, 2009, Russia was the first country in 2004 to undergo the OECD examination on regulation. The law “On Protection of Competition”, which repealed the previous one of March 1991, was promulgated in October 2006. Purpose of the new legislation was to simplify the existing regulatory framework on competition and to introduce new concepts and approaches. The application of the new competition law concerns banks and other credit institutions, insurance companies, insurance brokers, stock and currency exchanges, leasing companies, private pension funds, investment management companies and depositaries as well, previously governed by a different law ‘‘On Protection of Competition in the Financial Markets’’. The areas of greatest interest covered by the new law refer to: 1) Prohibition of monopolistic behaviour and unfair competition (Anti-competitive agreements and concerted actions; Abuses of dominant position; Prohibition of unfair competition); 2) Prohibition of anti-competitive actions of state authorities and agencies; 3) Control over economic concentration (Mergers, Establishment of new entities, Acquisitions of equity interests, assets or rights).
[8] The Courts of the Soviet period had no power on the constitutionality of laws and for this reason the protection of citizens’ rights were formally guaranted.
[9] S. Liebert, S.E.Condrey, D.Goncharov, “Public Administration in post Communist Countries”, CRC Press, 2013; “State service in the Russian Federation”, National School of Administration (SNA) Report, Italy, 2010.
[10] In particular, during the first phase there were no schools related to the professional education of civil servants; the further training was headed by ideological institutions of the Communist Party Academy of Social sciences and the Governamental Academy of National economy. Early Departments of Public Administration were founded in 1993, with no professional faculties and no legal framework because of the absence of an educational standard. First institutions of professional development education provided teachings and materials coming from the communist educational system. The second phase began with the adoption of the 1995’s Federal Act on the Civil Service: it laid down the requirements for civil service personnel’s professional level, as well as establishing the task to ensure the quality of government-controlled standards and education programs. Since 1995, three generations of study programs have been implemented: first generation (1995) was characterized by five years specialistic but incomplete courses, copied from western programmes and not adapted to Russian context; the second generation (2000) experienced the division of study programs in bachelors and specialists; the third generation (2010) finally adopted the international two stages study course of bachelor and master degrees related to administrative law and management subjects. The last phase accomplished the shift in the function of controlling the quality standards of educational programs from government agencies to professional associations specialized in the accreditation of higher education institutions with curricula related to Public Administration. For a more detailed discussion, see A. Barabashev, T. Kastrel, “Education in Public Administration in Russia: New Standards and Trends”, Croatian and Comparative Public Administration, Institute for Public Administration, vol. 13, 2013, pp. 105-121.
[11] The New Public Management doctrine refers to the trends of development initiated mainly in OECD countries since 1980s: they have been developed to close as possible to the public management of private companies management methods. The NPM aims to reduce the dysfunctions of bureaucracy, for example, excessive regulation legislation, without compromising its legal basis. The NPM doctrine has resulted in the birth of a public administration closer to the logic of the free market. as well as greater freedom of managers, privatization of public entities, flexible organizational structures, decentralization processes, removal of the control process and, in general, all kinds of measures that contribute to the “management” of administration.
[12] A. Barabashev, A.V. Klimenko, “Russian Governance Changes and Performances”, Chinese Political Sciences Review, Springer, 2017.
[13] “State Service in the Russian Federation”, National School of Administration Report (SNA), Italy, 2010.
[14] A. Konov, “Public Service and Administrative Reforms in Russia”, State University, Higher School of Economics, Moscow, 2006. The current Cabinet of the Chairman includes: Ministry of the Interior, Ministry of Finance, Ministry of Economic Development, Ministry of Industry and Trade, Ministry of Defense, Ministry of Foreign Affairs, Ministry of Communications and Mass Media, Ministry of Healthcare and Social Development, Ministry of Transport, Ministry of Justice, Ministry of Energy, Ministry of Agriculture, and Ministry of Natural Resources, Ministry of Emergency situations, Ministry of Education and Sciences, Ministry of Construction Industry, Housin and Utility sector, Ministry of Culture, Ministry of Sports, Ministry of Russian Far East. There are also 11 Offices with the status of Ministers and federal agencies (agentsva), providing enforcement, licensing and public services and federal sevices(sluzhby), exercising control and oversight in respective sectors. Some ministries (in law enforcement, defense, and foreign affairs) report directly to the President, rather than the Prime minister, as well as federal agencies and services (among all the Federal Security Service, former KGB).
[15] The staff of self-governing bodies is beyond the concept of a public employee for the purposes of applicability of the Presidential Decree. In the sub-local level to regulate labor relations are still mixed essentially private law contracts election phenomena or cooptation, although the local level functions are rather limited; just think that education, health, housing, environmental protection, urban planning are all administrative functions of the Federal Administration or Federal states.
[16] On the failure of the privatization maneuvers, G. Ajani “Il modello post-socialista”, Giappichelli, 1999.
[17] The percentage is reported in R. Bettini “Russia, sociologia del sommerso”, Franco Angeli Editore, 2001, p. 22
[18] B. Belenkin “Rapporto sulla corruzione in Russia negli anni Novanta”, Proceedings of the Sociology of Law Chair, Faculty of Sociology, La Sapienza, 1997.
[19] Public institutions’ openness and transparency are an indispensable path for improving accountability and for preserving citizens’ trust. Government has introduced a wide range of reforms, including pre-trial procedures for considering complaints related to the quality of public service delivery; an “E-parliament” initiative allowing citizens to submit draft laws for consideration by the Parliament and an “Open Government” initiative. Source: April 2013 OECD’s Report “Russia: Modernizing the Economy”.
[20] We need to distinguish between corruption and “state capture”: the previous is an “intentional introduction of distortion in the established order of existing laws, rules and regulations implementation, in order to provide benefits for the state or non-state actors after illegal transfer or diversion of private funds to public officials”; the latest is definable as the “the actions of individuals, groups or companies both in the public and private sector aimed at influencing the formation of laws and regulations, decrees and other public policy for their own benefit. It is the result of illegal transfer of private benefits to public officials or the benefits concentration in the hands of the latter”. See V.S. Osipov, A.G. Zeldner “Public Administration Dysfunctions: Theory and Practice”, www. Academia.edu, 2016.
[21] G.Grancelli, “Imprese, mercati e regime amministrativo. Le architetture del capitale in Russia “, Franco Angeli Editore, 2014.
[22] D. Casalini, “Fondamenti per un diritto delle acque dolci”, Giappichelli, 2014.
[23] The constitutional norm of Article 118 has become an alibi for not predetermine the contents of the administrative case, leaving, in case of disputes, the last word to the civil judge.